Monthly Archives: September 2024

A bank’s duty to question payment instructions, aka the Quincecare duty

Banking and Finance, Contract Law

Payment scams are rife. A particularly prevalent form is the authorized push payment (APP) scam. These payments are authorized by a bank customer after falling for a third party’s deceit, which may take many different forms, including fake investment opportunities, impersonation of figures such as bank officers and the police, and diverting an intended payment into the scammer’s account. Because these payments are authorized by the customer, the bank has a valid authority (mandate) to pay and must ordinarily make the payment. Authorized payment scams can be contrasted with unauthorized payments which do not originate from the customer and therefore involve forgery. In such cases, a bank has no authority to pay and at common law will bear the loss, although this is subject to contract terms allocating the loss to the customer. Most authorized payment scams are push payments which means that the payment instruction is sent by the payer to their bank. Examples are payments by mobile phone or home computer. By contrast, pull payment instructions are given by the payer to the payee who initiates the payment process through their own bank. Examples are cheques or direct debits. Pull payments are less prone to authorized payment scams, hence the focus on push payments.

Shareholder Stewardship: Autonomy and Sociality

Corporate Law

Private and public actors have traditionally conceived, diffused and accepted shareholder stewardship as a market-driven concept.  In my paper published in the Journal of Corporate Law Studies in 2023, I argue that there is another constitutive—and admittedly well hidden—element of stewardship that is more apt to fully grasp its distinctive features and to better inform market and public policy initiatives. This element, which I refer to as ‘stewardship sociality’, regards stewardship’s essence as a social norm that precedes and operates outside of any soft or hard law initiatives. 

Agency Law and Artificial Intelligence

Artificial intelligence, Law of Agency

A feature of modern living today is the ubiquity of automated systems or artificial agents. Such agents are implementations of machine learning using neural networks and deep learning. They vary in their level of sophistication and complexity. What they have in common is that they supplant and automate processes that would otherwise require human intervention. An artificial agent’s choice of action at any instance depends on (a) its built-in knowledge and (b) the sequence of content its sensors have perceived (the agent’s percept sequence). The choice is effected by mapping every percept sequence to each choice of action, by way of different implementations or combinations of implementations known as ‘models’.  While humans, who have desires and preferences of their own, choose actions that produce desirable results from their point of view (or additionally, are morally, ethically and legally correct), machines do not have desires and preferences of their own.  Instead, an artificial agent is programmed to maximize its performance based on these models and one that does so successfully is said to exhibit ‘rationality’ or ‘intelligence’.

How Internet Governance is Evolving

International Law

A struggle is underway in internet governance between two competing governance structures. The first structure, multistakeholderism, continues in some ways the informality and public-private partnerships that have characterised the internet since its inception. Today however, internet governance is rapidly moving away from its multistakeholder origins towards an alternative structure rooted in multilateralism. I recently analysed the struggle between multistakeholderism and multilateralism, and the role played therein by international law, in ‘Another Swing of the Pendulum? The International Rule of Law and the “Splinternet”’ (published in Rule of Law in a Transitional Spectrum). This blog post briefly outlines the main contours of the struggle analysed in the longer piece.